Alan Matthew White v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00042-CR
___________________________
ALAN MATTHEW WHITE, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1537841R
Before Birdwell, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
In a single issue on appeal from his convictions and concurrent sentences for
six counts of aggravated sexual assault and one count of aggravated assault with a
deadly weapon, Alan Matthew White contends that the trial court erred by denying his
request to cross-examine the complainant about evidence that he claims was relevant
to his defense under Rules 401 and 402 and not excluded under Rule 412. Tex. R.
Evid. 401–02, 412. We affirm.
Background
White was charged in a single, amended indictment with six counts of
aggravated sexual assault and one count of aggravated assault with a deadly weapon,
alleged to have been committed in the same criminal episode. White pleaded not
guilty, and the case was tried to a jury.
The complainant testified that she dated White for a few months and then
moved in with him; eventually, they got engaged and planned a wedding. But the
complainant ended their relationship a couple of weeks before the wedding. White did
not take the breakup “well at all”; “[h]e was very vindictive” and threatened to sue
her. But after some time without any contact, they eventually “start[ed] hanging out as
friends.” White helped the complainant go through a hard time with her brother. The
2
complainant testified that during this time White “knew about [her] dating life” and
did not like her boyfriend at the time, Ed.1
The complainant testified that after several months of friendship, White
wanted to try dating her again; at first, she “warmed up to the idea” but then changed
her mind “within a day.” Nevertheless, the two did engage in a consensual “physical”
relationship once. Even though the complainant did not want to continue dating
White, they remained friends. Her relationship with Ed had become “[p]retty toxic,”
and she frequently talked to White about it.
Eventually, the complainant noticed that White’s mental health was declining,
and she told him they could no longer be friends. He again did not take her decision
well. He became suicidal and disappeared; his family could not locate him. The
complainant was able to reach White by phone and told him to come back home, but
White interpreted her message as saying to come to her house. Instead, she proposed
meeting him in a public place, but he was agitated and refused to talk until she went to
his house. The complainant did so, but she left without any intention of returning
because she no longer felt safe with White. He was erratic and suicidal, and he had a
gun.
After the complainant left White’s house, she saw her brother and then went
out drinking with a male friend. White was not happy she was going out, and he
1
We use a pseudonym to refer to the complainant’s boyfriend. See Tex. Const.
art. I, § 30(a)(1) (“A crime victim has the . . . right to be treated with . . . respect for
the victim’s . . . privacy throughout the criminal justice process.”).
3
“continuously bl[ew] up [her] phone to the point [she] had to turn [it] off.” In some
of his text messages, he told the complainant that he wanted “to hook up that night.”
Before turning off her phone, she told him she didn’t want to do that. After going
out, she spent the night with Ed. In later texts with White, he accused her of having
sex with Ed that night, which she denied. White’s texts continued to be accusatory2
and emotionally manipulative, repeatedly threatening suicide.
Before returning to her own home, the complainant saw a message from White
that said he had driven by her house and that he knew she had spent the night
elsewhere. It unnerved her. The State introduced into evidence text messages between
White and the complainant occurring over the next two days. In them, White
repeatedly threatened imminent suicide and faulted the complainant for not coming
over to have sex with him “one last time” before he finished his plan to kill himself.
He told the complainant that he had been forced to hire prostitutes and use drugs
instead of having sex with her before dying. The complainant asked White more than
once if he intended to rape her.
After receiving a text from White once again threatening imminent suicide, the
complainant stopped getting texts from him, and she fell asleep on her couch. The
next morning, she woke up and saw White standing in her house. He grabbed her
2
One of White’s texts read, “I can’t even get the physical part of you. You’d
rather have others.” During the State’s direct examination, the complainant alluded to
her “sexual relationship” with Ed, and White’s text messages admitted into evidence
reference more than once her having sex with Ed.
4
phone and sat down; he had a gun in his hand. He threatened to kill himself in front
of her.
White told the complainant he wanted to look in her phone, but she told him
no because he wouldn’t “be happy with what” he saw; she had also been texting with
Ed, and she did not want White to see the messages because that relationship “had
historically been a sensitive subject for him.” He became angry and put her in a
chokehold until she unlocked the phone for him. He had never “been physical with”
her in that way before. White pointed the gun at her while scrolling through her
phone. He became angry while reading her texts with Ed.
White then held the gun on the complainant and––over the course of several
hours––sexually assaulted her via six different acts. Eventually, White allowed the
complainant to call her mother, and the complainant asked her to come to the house.
White left before the complainant’s mother arrived. He asked the complainant to walk
him to his car; he was struggling to see and walk, and she had to hold onto him until
he reached the car. As soon as he left but before her mother arrived, the complainant
called the police.
The responding officer testified that when he arrived shortly after noon, the
complainant was “very distraught, upset, crying[, and v]isibly shaken.” The
5
complainant’s mother drove her to the hospital where a sexual-assault nurse examiner
(SANE) performed a physical examination and took swabs for DNA analysis.3
Meanwhile, a Fort Worth police officer responded to a call about an
unconscious person at a gas station. When the officer arrived, he found White
unconscious in his car with a firearm next to him on the seat. White did not regain
consciousness even when the officer broke the window to take the gun, when the
responding fire department removed him from the car, and when the officer used
White’s thumb to unlock the phone found in the car. The gun the officer found in the
car was unloaded, and there was no magazine with it. White was taken to the same
hospital where the complainant was being examined.
The trial court admitted White’s hospital record from that day, and the SANE
read from the notes, which referenced White’s “altered mental status,” history of
suicide attempts, and then-current suicidal ideation. The SANE also read the
following:
The patient states that he became upset after he found out that his ex-
girlfriend had slept with her ex-boyfriend. He said that he has been
trying to fix their relationship including setting up couples counseling.
He says that his ex-girlfriend agreed to the counseling before he
found out that she had already reconnected with her ex-boyfriend and
was having sex with him. He states that all he wanted to do was quote,
please her, unquote.
3
The SANE testified that at the hospital, the complainant was “[c]rying, upset,
[and] sobbing.”
6
The complainant and a victim’s assistance advocate all testified that the
complainant had panicked after she thought she had seen White’s car at the hospital.
She ran back into the hospital and hid in the women’s restroom. The victim’s
assistance advocate found the complainant “[e]motionally very distraught, crying,
hysterical[,] and barely able to breathe.” Eventually, the complainant was able to leave
and go home. But she was unable to actually live in her house until a year to two years
after the assaults.
When the swabs taken from the complainant at the hospital were tested, DNA
from the vulvar swab matched DNA from White’s buccal swab. Additionally,
although police had searched the complainant’s home at the time of the assaults, they
found no gun evidence. But when the complainant eventually moved from her home,
a gun clip fell out of her couch when she was moving it.
After hearing the foregoing evidence, the jury found White guilty of all charged
counts and, after hearing punishment-related evidence, assessed his punishment at
fifty years’ confinement for two of the aggravated sexual assaults, twenty-five years’
confinement for one of the aggravated sexual assaults, seventeen years’ confinement
for each of the other three aggravated sexual assaults, and twenty years’ confinement
for the aggravated assault with a deadly weapon. The trial court ordered the sentences
to run concurrently.
In a single issue on appeal, White argues that the trial court improperly limited
his cross-examination of the complainant by denying him the right to ask her
7
questions about her desire to marry Ed and have him “all to herself.” According to
White, this evidence supported his “only theory of defense”: that the complainant had
a motive to lie and fabricate her testimony because she did not want to admit to Ed
that she had sex with White consensually.
Limitation of Cross-Examination
During his cross-examination of the complainant, White asked the trial court to
question her about “some possible 402 stuff about past relationship . . . – well,
relations with [Ed] at the time.” The trial court allowed White to conduct a voir dire
examination of the complainant, in which he elicited that
• the complainant and Ed were dating when she and White became friends again;
• when White was missing and the complainant thought he was out of state, she and
Ed “were talking about continuing [their] relationship”;
• she had told Ed about her “communication with” White;
• she and Ed had a sexual relationship;
• Ed “had commitment issues”;
• nevertheless, she had texted Ed that she wanted to have a family and life with him;
• the day before the assaults, she had a text conversation with Ed about an ex-
girlfriend moving in with him and in that conversation told Ed that it would not be a
good idea to let his ex-girlfriend move in with him because “females are the most
manipulative creatures on this earth”; and
• the complainant was worried about Ed’s “bringing the ex-girlfriend in” and thought
she might take Ed away from her; she even offered to let Ed move in with her and
told him that she would pay for him to break his lease to do so.
8
White contended at trial that the above evidence was admissible because the
State had opened the door by eliciting testimony about the complainant’s and Ed’s
relationship and also because it was relevant to White’s “defensive theory . . . that she
was worried . . . her current boyfriend [would] find[] out that she might have slept
with” White and therefore had “a reason to make something up.” The State
responded that “a significant portion of this calls for hearsay from” Ed, that “[t]hese
are specific past sexual acts . . . [and it would be] improper to bring them into this
case,” and that––if the defensive theory was that the sex was consensual––the State
had two witnesses available to testify “that consent is a problem for” White and
allowing this testimony would open the door to those witnesses’ testimony.
After White argued again that this evidence was relevant and would fit into
Rule 412’s narrow motive-and-bias exception––and thus not be barred by that rule––
the trial judge acknowledged that although “412 does come into play . . . the
discussions on . . . e-mail going back and forth on the phone with another person is
not relevant to whether or not Mr. White engaged in sexual assault of another
person.”4 Therefore, the trial court denied White’s request to question the
complainant about the evidence.
4
Based on the voir dire testimony, the attorneys’ arguments, the trial judge’s
ruling, and the exhibit the trial judge admitted for the record only, we can tell the
substance of the excluded evidence by context, as well as the reasons why White
thought it should be admitted. Thus, White preserved his appellate complaint. See Tex.
R. App. P. 33.2; Tex. R. Evid. 103(a)(2); Golliday v. State, 560 S.W.3d 664, 670–71 (Tex.
Crim. App. 2018).
9
Applicable law
We review a trial judge’s admissibility decision for an abuse of discretion.
Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The trial court abuses its
discretion when its decision falls outside the zone of reasonable disagreement. Id. But
if the evidentiary ruling is correct under any applicable theory of law––even if the trial
court gave a wrong or insufficient reason for the ruling––we will not disturb it. Id.An accused is given wide latitude to present evidence of any fact tending to
show a witness’s ill feeling or bias toward, or motive to fabricate against, the accused.
Id. at 914. But a trial court does not abuse its discretion in excluding such evidence
unless it “so drastically curtail[s] the defendant’s cross-examination” that the
defendant is unable to make a record from which to argue the witness’s bias or
partiality, such as when the trial court forecloses all inquiry into a form of bias or a
reasonable jury is left with a significantly different impression of the witness’s
credibility than it would have been able to see with the cross-examination. Johnson v.
State, 433 S.W.3d 546, 555 (Tex. Crim. App. 2014) (“[M]erely establishing the
relevancy of proffered evidence does not necessarily guarantee its admissibility.”).5
5
Stated another way, “The test to determine the scope of cross-examination
demanded by the Confrontation Clause is whether the defendant could present a vital
defense theory without the evidence, not whether the defensive theory is as strong as
it could be with the evidence.” Faglie v. State, No. 03-17-00281-CR, 2019 WL 847812,
at *4 (Tex. App.—Austin Feb. 22, 2019, pet. filed) (mem. op., not designated for
publication) (citing Johnson, 433 S.W.3d at 557).
10
Analysis
On appeal, White claims that the evidence that the complainant was afraid to
lose Ed, wanted a long-term commitment with him, and was worried about the
possibility of his ex-girlfriend’s moving in with him was relevant because it showed
the complainant had a motive to fabricate her testimony that the sex with White was
nonconsensual and because it rebutted her testimony that her relationship with Ed
was “toxic,” as she had claimed. White therefore complains that the trial court took
away his “only” defensive theory.
White’s argument rests on the assumption that the evidence the jury heard
about the complainant’s relationship with Ed would have left the jury with the false
impression that the relationship was casual, or openly nonmonogamous, or that the
complainant was not intending to continue dating Ed. But although the complainant
testified five years after the fact that her relationship with Ed in 2017 was toxic does
not mean that it wasn’t serious or that the jury was left with the false impression that
she had no motive to hide from Ed that she might have had consensual sex with
others. 6
In fact, the jury heard that the complainant and White discussed her
relationship with Ed; that White had urged her to stop dating Ed; that her relationship
Nor is there any evidence of how or why Ed would have found out that White
6
was at her house on the day of the assaults, much less that he had sex with the
complainant. As the State notes in its brief, when the complainant called her mother
and the police, “only two people knew what [had] unfolded,” and “fear of discovery
would provide [the c]omplainant with motive to remain silent.”
11
with Ed was sexual; that White had expressed jealousy about that sexual relationship
and tried to use that jealousy to manipulate her into have sex with him;7 that––despite
White’s expressed desire to have sex with her and his warnings about Ed––she
refused to see White and instead spent the night with Ed;8 that her “boyfriend” was
present at the hospital when she went to be examined; and that she told the SANE
that she had engaged in consensual sex within the last seven days before the assaults.
Thus, to the extent that the jury heard evidence about the nature of the complainant’s
relationship with Ed, it was consistent with the excluded evidence, thus diminishing
any relevance that the excluded evidence might have had. See Miles v. State, 468 S.W.3d
719, 724 (Tex. App.––Houston [14th Dist.] 2015) (noting that whether evidence is
relevant requires a court to examine the purpose for which it is being introduced to
determine if a direct or logical connection exists between the actual evidence and the
proposition to be proved), aff’d, 506 S.W.3d 485 (Tex. Crim. App. 2016); cf. Austin v.
State, No. 02-18-00484-CR, 2019 WL 6205247, at *7, *10 (Tex. App.—Fort Worth
Nov. 21, 2019, pet. ref’d) (mem. op., not designated for publication) (applying same
relevance analysis to different facts and concluding that, “[t]hough perhaps not to the
7
The complainant testified that when White read her texts with Ed before the
assaults, he was upset; she “vividly remember[ed] him saying [Ed] is not going to be
the last person you had sex with before I die.”
8
The jury also heard that the complainant had sent explicit photos of herself to
Ed; that White saw those photos on her phone and was angry; that although she had
never sent White any of those photos, some of them were sent to White’s phone
around the time the assaults were occurring; and that the complainant thought White
himself had sent those photos to his phone while he had access to her phone.
12
degree desired by Appellant, the record contains numerous references to the
complainant’s psychiatric treatment and hardly left the impression that the
complainant was untroubled”).
During cross-examination, the complainant admitted that––even after she had
broken her engagement with White––she traveled to Las Vegas with him and their
families and stayed in the same hotel room with him; that he had continued to live
with her for a short time after their breakup and that at the time of the assaults, she
still received some of his mail; that she had contacted him several months after their
breakup to talk with him about her brother’s health problems, thus initiating the
renewed contact; that she had done so because White was a sympathetic listener; and
that after they renewed their contact, she had consensual sex with White one time.
The complainant likewise freely admitted during cross-examination that she did
not remember many details about the timing and other aspects of the assaults because
five years had elapsed between the assaults and trial. She also agreed that she had
intentionally avoided thinking about what had happened. She admitted that she had
initially told the police that she was not scared for her safety when White came to her
house and was instead afraid that he would hurt himself. The complainant agreed that
she had not said that she needed help when she texted her coworker on the morning
of the assaults. Finally, she answered, “It rings a bell,” when asked, “[D]o you recall
telling the detective that you showered that morning with [White]?”
13
Although not to the extent he wanted, White was able to challenge the
complainant’s credibility. During closing argument, his counsel noted her inability to
recall certain details; for example, he argued that there was no way White could have
been stumbling and unable to stand while leaving her home after the assaults––as she
had testified––and then have managed to drive himself to a gas station twenty minutes
away. He pointed out that the complainant’s cell phone records showed that she was
“getting and sending texts throughout th[e] time” of the assaults. He reminded the
jury that her relationship with White was “fine” while they were engaged and that it
was the complainant who had later contacted White to renew their friendship.
Counsel even used the text messages themselves to argue that it was their discussion
of rape that had planted the idea in her mind to accuse White of the assaults. Finally,
counsel highlighted two ways the evidence purportedly conflicted; according to
counsel (1) the assault details that the complainant described to the SANE varied
from the details that the complainant testified to at trial9 and (2) the complainant had
forgotten about one of the assaultive sex acts during direct examination and “had to
be reminded on the redirect by the State.”10
9
Counsel even argued that the SANE wanted White to be convicted, as
evidenced by her demeanor with the prosecution versus the defense.
The State did not ask this question on redirect; instead, the prosecutor asked
10
the complainant about this sixth act specifically during her direct examination of the
complainant.
14
After comparing the excluded evidence to the rest of the evidence at trial, we
conclude that the trial court did not so drastically curtail White’s cross-examination to
the extent that he was unable to make a record from which to argue bias, partiality, or
motive to fabricate; the trial court’s ruling did not foreclose all inquiry into a form of
bias, nor was the jury left with a significantly different impression of the
complainant’s credibility than it would have been able to see with the requested cross-
examination. See Johnson, 433 S.W.3d at 557. Thus, the trial court did not abuse its
discretion by limiting White’s cross-examination of the complainant.
Conclusion
We overrule White’s sole issue and affirm the trial court’s judgments.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 23, 2023
15